Half a decade later, no Memorandum of Procedure in sight

Half a decade later, no Memorandum of Procedure in sight

In December 2015, the Supreme Court had ordered the Central government to frame a new Memorandum of Procedure (MOP) which lays down the procedure for appointment of judges to High Courts and the Supreme Court.

In December 2015, the Supreme Court had ordered the Central government to frame a new Memorandum of Procedure (MoP) which lays down the procedure for appointment of judges to High Courts and the Supreme Court.

The order by the top court came after the Centre, through its then Attorney General Mukul Rohatgi, undertook to draft the MoP stating that it was an administrative responsibility, which fell within the executive domain.

But five years down the line, MoP does not seem to be in sight which effectively means that the apex court’s order is yet to be implemented and appointments to higher judiciary are still governed by the old MoP.

The MoP was first drafted in June 1999 pursuant to the directions of the Supreme Court in the Second Judges case. It laid down the procedure to be followed under the Collegium system for appointing judges to the higher judiciary.

In 2015, the Parliament enacted the National Judicial Appointments Commission (NJAC) Act to mark a significant shift in the manner of the appointment of judges. The NJAC Act sought to replace the collegium system by providing for a body comprising representatives from both the judiciary and the Centre to make recommendations for the appointment of judges to the higher judiciary.

However, a Constitution Bench of the Supreme Court, on October 16, 2015, struck down the NJAC as unconstitutional for violating independence of judiciary. Subsequently, for the first time ever, the Court invited suggestions for improving the Collegium system of appointing judges with the object of ensuring greater transparency in judicial appointments. Based on the inputs received, the Court on December 16, 2015 passed an order by which it left the task of amending the Memorandum of Procedure (MoP) to the central government.

Half a decade later, no Memorandum of Procedure in sight
#Collegium: Supreme Court leaves it to Centre to amend Memorandum of Procedure, gives suggestions [Read Order]

During the initial phase after the NJAC judgment, the MoP did not materialise due to disagreements between the Centre and the Collegium.

The disagreement between the two was pronounced during the tenure of former Chief Justice of India TS Thakur.

Half a decade later, no Memorandum of Procedure in sight
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In March 2017, the Supreme Court unanimously rejected the recommendation of the Centre that they should have the power to reject any name for appointment as a judge of the high court for reasons of “national security”. Calls for a permanent secretariat to appoint judges were also rejected.

There were calls to take up the issue on the judicial side and this happened in October 2017 when a Bench of of justices AK Goel and UU Lalit decided to seek Centre’s response on the delay, stating in its order,

“…we need to consider the prayer that there should be no further delay in finalization of MOP in larger public interest. Even though no time limit was fixed by this Court for finalization of the MOP, the issue cannot linger on for indefinite period. The order of this Court is dated 16th December, 2015 and thus more than one year and ten months have already gone by.”

The order was passed in a petition by advocate RP Luthra but the case was subsequently pulled from that Bench and listed before a Bench headed by then CJI Dipak Misra who proceeded to recall the order passed by Justice Goel led Bench.

Vacancies across High Courts remain high, pendency continues to mount, the Supreme Court has been issuing directions to States to ensure lower court vacancies are filled up, but its own 5-year old order is yet to be complied with.

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